# Appeals court fires back at Obama's comments on health care case **URL:** \ **Category:** Great Debates\ **Created:** [April 3, 2012, 9:51pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739 "2012-04-03T21:51:26Z")\ **Posts on this page:** 17\ **Page:** 5
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [April 9, 2012, 11:24pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/81 "2012-04-09T23:24:59Z")
> [@Kearsen](#): > > Tried sending this as a PM but it wouldn’t let me > > **The Second Stone** > You probably don’t even recognize the handle but you have earned a respectful pat on the back today by posting what you did. By acknowledging a mistaken attribution, you apologized. > > You may not care but it did not go unnoticed. Please don’t turn me in to the bar! When Oakey wrote that I was tempted to write that I meant the generic “you”. But seeing as I had used his interesting point to make the quote I was responding to, it was perfectly reasonable to say it misrepresented his position. The point not being what I meant, but what readers reasonably interpreted. In no way is he subject to being accused of what I wrote. So I apologized. Now, I’ve done this in Court a half a dozen times in the past quarter century, and you can hear a pin drop and watch mouths go slack. But it works. It is so rare for an arrogant ass attorney to apologize sincerely that it is like being gobsmacked. So thanks. And thanks Mom for teaching me how. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 9, 2012, 11:30pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/82 "2012-04-09T23:30:32Z")
> [@Czarcasm](#): > > What was wrong with it? It was written by a Democrat. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 10, 2012, 4:24am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/83 "2012-04-10T04:24:17Z")
> [@Bricker](#): > > In this case, the President says, in effect, there is no precedent for courts to declare legislation unconstitutional. That’s not a policy statement, counsel. He’s not saying or implying what his administration might do under a given set of circumstances, which _would_ be policy. He’s expressing an _opinion_ of the legitimacy of a potential action of \*another \*group of persons, but he’s not implying any potential course of action for his Administration in response. So again, where’s the policy? I see none. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 10, 2012, 6:20am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/84 "2012-04-10T06:20:54Z")
_Numero uno_, there is no way, no chance, no how, that Obama does not know about the Supreme Courts function as regards constitutionality. _Numero two-o_, there is no way, no chance, no how that any of you actually _believe_ he doesn’t know. There’s no way and no day he’s that stupid, or you are that stupid, and as for me, my dick is smarter than that. So let us not talk falsely now, the hour is getting late… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 10, 2012, 7:38am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/85 "2012-04-10T07:38:28Z")
> [@RTFirefly](#): > > That’s not a policy statement, counsel. He’s not saying or implying what his administration might do under a given set of circumstances, which _would_ be policy. He’s expressing an _opinion_ of the legitimacy of a potential action of \*another \*group of persons, but he’s not implying any potential course of action for his Administration in response. > > So again, where’s the policy? I see none. Look, I agree that the President was not announcing policy. I was saying merely that there is a tortured reading of his words that allows the court to cast his words as a policy statement. If you want me to twist tortured meanings, I can, but let’s be clear that it is devil’s advocating, not a view I endorse. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 10, 2012, 7:43am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/86 "2012-04-10T07:43:08Z")
The Devil doesn’t have enough lawyers, he needs you? ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [April 10, 2012, 9:39am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/87 "2012-04-10T09:39:48Z")
> [@lawbuff](#): > > Left out the middle p, Presum **p** tively. > The SC has stated, when a law is passed by Congress it is Presumptively constitutional, or _Presumed_ Constitutional. > > Just as the SC has stated many times before, if a Search is conducted without a warrant, it is “Presumptively **UN** constitutional”. > > UN = Without, in this context. Without precedent, no decisional law to back it up. Of course Obama is talking politics, not law. I don’t know why Congress would deserve the benefit of the doubt. I imagine the point is that you have to start somewhere and make the case otherwise. If that’s the case, is Justice’s point anything more than stating the obvious and making it sound like Obama wasn’t talking out of his ass? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 10, 2012, 9:56am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/88 "2012-04-10T09:56:07Z")
> [@Bricker](#): > > Look, I agree that the President was not announcing policy. I was saying merely that there is a tortured reading of his words that allows the court to cast his words as a policy statement. > > If you want me to twist tortured meanings, I can, but let’s be clear that it is devil’s advocating, not a view I endorse. OK, but _you_’re saying that the judge was treating the President’s remarks as a statement of policy. How do you know this? Or is that just your WAG? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [April 10, 2012, 11:15am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/89 "2012-04-10T11:15:38Z")
> [@RTFirefly](#): > > OK, but _you_’re saying that the judge was treating the President’s remarks as a statement of policy. > > How do you know this? Or is that just your WAG? Sorry, not my debate, but I do want to register this post _really_ seems to struggle to find something to disagree about. Am I missing some wider significance? Is there a reason why it matters whether the judge is treating Obama’s remarks as statements of policy? (BTW I wouldn’t have said he’s treating them as statements _of_ policy, but rather, as statements with _likely implications_ for policy.) ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 10, 2012, 1:01pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/90 "2012-04-10T13:01:25Z")
No, I’m actually trying to get at where **Bricker** got this from. Did this originate with the 5th Circuit judge, or is this something **Bricker** ’s intuiting? If the former, ISTM that it’s clear that the judge is hugely out of bounds here. Precise wording and its meaning is very important in the law biz, and if the judge based this whole shenanigan on an impression of what he thought Obama meant, rather than parsing what Obama _actually said_ to determine whether it had potential implications for his case, then he’s committed an act of gross legal malpractice. (By a lay definition of 'gross legal malpractice, FWIW.) If the judge actually thought Obama was making even an off-the-cuff policy statement, and that was his basis for playing these games, then his sorry ass should be kicked off the bench because there’s no statement of policy, formal or informal, there. And short of the notion that Obama might be going all Andy Jackson on us, it’s hard to see policy _implications_ in his statement that have anything to do with the case before the 5th Circuit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 10, 2012, 2:34pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/91 "2012-04-10T14:34:53Z")
> [@RTFirefly](#): > > OK, but _you_’re saying that the judge was treating the President’s remarks as a statement of policy. > > How do you know this? Or is that just your WAG? Well, it’s an inference. I going to push back a bit on “WAG,” because it’s not a wild guess, but an inference based on experience in front of judges in an appellate context. The judge never says, explicitly, that he’s treating the President’s comments as sober policy, but he does imply it: > [@](#): > > JUDGE SMITH: Does the Department of Justice recognize that federal courts have the authority i appropriate circumstances to strike federal statutes because of one or more constitutional infirmities? > > DOJ ATTORNEY KAERSVANG: Yes, your honor. Of course, there would be need to be a severability analysis, but yes. > > SMITH: I’m referring to statements by the president in the past few days to the effect, and I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress that have enjoyed – and he was referring, of course to Obamacare – to what he termed a broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts, or to their authority, or to the appropriateness of the concept of judicial review. And that’s not a small matter. > > So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases. > > KAERSVANG: Marbury versus Madison is the law, your honor. And it would not make sense in this circumstance to strike down this statute. > > SMITH: All right. Well, I would like to have from you by noon on Thursday, that’s about 48 hours from now, a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president, stating specifically and in detail, in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single-spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and to, again, the position of the attorney general and the Department of Justice. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 10, 2012, 3:05pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/92 "2012-04-10T15:05:00Z")
> [@What\_the](#): > > I don’t know why Congress would deserve the benefit of the doubt. I imagine the point is that you have to start somewhere and make the case otherwise. If you don’t give Congress the benefit of the doubt, you have a presumption that all laws are invalid _until proven otherwise_. That would be quite silly, really. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 10, 2012, 4:23pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/93 "2012-04-10T16:23:06Z")
[QUOTE=Judge Smith] That has troubled a number of people who have read it as somehow a challenge to the federal courts, or to their authority, or to the appropriateness of the concept of judicial review. And that’s not a small matter. [/QUOTE] So the airhead in the black robe assigned this homework in deference to how “a number of people” reacted to Obama’s statement, rather than being able to quote his specific words and say why he, in his capacity as a Federal judge, found them troubling. Yeah, his butt should be kicked off the bench. I’m sure there are a few wingnut think tanks looking for thinkers of his reputation, so he wouldn’t have to find honest work. ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [April 11, 2012, 11:50am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/94 "2012-04-11T11:50:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If you don’t give Congress the benefit of the doubt, you have a presumption that all laws are invalid _until proven otherwise_. That would be quite silly, really. So you agree with me then,… pretty much stating the obvious rather than a brilliant argument making the case for a brilliant constitutional scholar who was actually talking out of his ass. Where’s a teleprompter when you really need one? ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [April 13, 2012, 10:37am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/95 "2012-04-13T10:37:23Z")
> [@RTFirefly](#): > > So the airhead in the black robe assigned this homework in deference to how “a number of people” reacted to Obama’s statement, rather than being able to quote his specific words and say why he, in his capacity as a Federal judge, found them troubling. And of course his reference to “Obamacare” rather than PPACA is rather telling too. You just _know_ that the Justice Department did their darnedest to bring the letter in under three pages, just to see if the judge would quibble. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 13, 2012, 1:12pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/96 "2012-04-13T13:12:35Z")
> [@What\_the](#): > > So you agree with me then,… pretty much stating the obvious rather than a brilliant argument making the case for a brilliant constitutional scholar who was actually talking out of his ass. Where’s a teleprompter when you really need one? I have no idea what you’re talking about, but I’m pretty sure I disagree with you. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 13, 2012, 9:49pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/97 "2012-04-13T21:49:58Z")
> [@Shodan](#): > > I am kind of hoping he sends it back with a big red C- on the first page. > > Regards, > Shodan I’m pretty sure that the administration would be perfectly happy with a C-. It’s like when you think an assignment in school is stupid, so you do the bare minimum not to affect your grade. it’s a kind of protest. [Previous page](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739.md?page=4)